Judge agrees to allow grandmother, granddaughter visitation

WORCESTER — For the first time in more than two years, Mary Ann Swistak of Hardwick picked up the telephone on Thanksgiving eve and spoke to her granddaughter a few miles away in Barre.

The 9-year-old voice on the other end is the last connection Ms. Swistak has to her daughter, Randi Stemlokas, who died in a horseback riding accident in the fall of 2005. It was the first of many tragedies the families would experience.

Back then, Ms. Swistak and her husband, Michael Swistak (who died April 2010 from pancreatic cancer), regularly cared for Morgan Stelmokas, who also enjoyed time with her aunt, Blair Swistak and her great grandmother, Theresa Zaganiacz.

But in 2006, the great relationship they had with Morgan's father, William Stelmokas, changed. He was devastated over the loss of his wife and was trying to move on as a single father. He started dating and in November of 2006 the woman he'd been seeing died in a car accident. In a 2008 logging accident he nearly lost his leg.

Ms. Swistak became concerned about her granddaughter's well-being and Mr. Stelmokas' ability to care for her. In 2007 she made the first of two calls to the state Department of Children and Families. The agency found no cause for concern, according to legal documents.

Before long, the matter moved to court.

"They said I was a bad parent," Mr. Stelmokas said. "And it escalated into a fight."

A judge suspended Morgan's visits with her grandparents, but after some time and in spite of the court order, Mr. Stelmokas allowed Morgan to have time with her grandparents again.

Then things went downhill.

In 2009, Mr. Stelmokas met a new woman and when they later married, she adopted Morgan. The Swistaks learned of the adoption moments before a judge terminated their rights for visitation in 2011, citing a state law that, according to an appeals court decision, the judge misread.

"At the hearing, the judge informed the grandparents that the child had been adopted by the father's new wife and that the plaintiff was 'not the grandmother anymore, legally' because 'as soon as a child's adopted by another parent, that cuts off the entire other family,'" according to a decision by the Appeals Court of Massachusetts.

The same judge had granted the adoption, the ruling states.

The appeals court vacated the decision but kept the hold on the Swistaks' visitation and sent the matter back to the lower court, ordering that a different judge hear the matter.

Terry Stelmokas admits she's had a strained relationship with Ms. Swistak since then.

Ms. Swistak said the same thing, though each believes they are easy enough to get along with and places the blame squarely on the other. Both said they are only concerned for Morgan.

In Massachusetts, grandparents have the right to see their grandchildren as long as the visits are in the best interest of the child, said Judge Joseph Lian Jr. who presides over probate cases in Worcester.

Mass. General Law Chapter 119, Section 39D allows for grandparents' rights, Judge Lian said, though the judge involved must determine whether the visits are good for the child..

He's seen his share of grandparents heartbroken over not seeing their grandkids and admits he has two grown granddaughters he adores; one a teacher and the other in law school. He tries to cut through the sometimes extraneous testimony that distracts from the legal issues of when grandparents should be involved with their children's children and when they should not.

One of his cases involved a military father who had been overseas for more than a decade and returned to seek custody of his daughter, who'd been in the care of her guardian, an aunt, after the girl's mother and sister had died.

Judge Lian's decision to grant him custody and allow visitation to the aunt was upheld on appeal.

Now, he has ruled on an agreement hashed out among Donald Stolgitis Jr., Mr. and Mrs. Stelmokas' lawyer, and Ms. Swistak's attorney, Nicole Reeves Lavallee.

Mr. Stolgitis, who himself fought a battle over the custody of his own son, said he never wants to see such matters go to trial and he told his clients they should try to work things out even if it's difficult to do so. He saw the effects of his own family's litigation and wanted to prevent Morgan from experiencing that, he said.

"Anytime we're in a situation where a kid is in the middle, it negatively affects them," he said. "My own case took such a toll on me, I rarely do these cases anymore."

So in the interest of doing what's right for Morgan, everyone involved will go through counseling.

Ms. Swistak is willing to do whatever it takes and has for some time had a sign in her yard letting Morgan know her maternal family loves and misses her. She's hoped her granddaughter has seen it and been comforted by it.

Morgan will be reintroduced to her grandmother slowly, once a counselor determines the time is right, and until then, they'll be able to talk on the telephone.

"It's definitely more than what I had," she said, adding that she was appreciative of Judge Lian's ruling. "He's awesome. This is exactly why I went to the appeals court."

In addition to counseling and eventually a few hours visit on Saturdays, the court also stipulated that the Stelmokases and the Swistaks should not speak ill of one another in front of Morgan.

Mrs. Stelmokas, despite the bad blood, said she's hopeful for a relationship with her adopted daughter's grandmother.

"I want to be the kind of mother who can send (Morgan's) grandmother her report card to hang on the refrigerator," she said. "And I would think she would want to get to know the woman who's mothering her granddaughter."

Ms. Swistak is cautious in her optimism.

"I will give it a shot," she said. "But I am afraid of retaliation."

Both sides said the matter probably should not have gone this far and that instead of using the courts to make Morgan's family smaller, they should gladly acknowledge that there are now more people in her new extended family that love her.

Still, Judge Lian set a date to review the case to see how things are going and penned a trial date on the court calendar, just in case.

He warned both sides after telling them he spoke with the probation officer who interviewed Morgan.

"She sounds like she's a delightful child," he said. "Let's keep it that way."

Contact Kim Ring at kring@telegram.com. Follow her on Twitter @kimmring.